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July 7, 2011

Debt Ceiling and the 14th Amendment: What’s It All About?

Possible White House maneuver may put Republicans in awkward position over Constitution

Can the 14th Amendment of the United States Constitution be used to issue an executive order to raise the debt ceiling? The controversy continues to grow, with Rep. Tim Scott, R-S.C., threatening impeachment if the president takes that step.

President Barack Obama, for his part, deftly dodged the question in his press conference on June 29, saying he was not a "Supreme Court justice, so I'm not going to put my constitutional law professor hat on here."

But Treasury Secretary Timothy Geithner seems to have taken up the flag on the issue for the administration.

At a Politico Playbook breakfast hosted by Mike Allen on May 25, Geithner was asked about the negotiations over the nation’s debt. According to C-SPAN transcripts, Geithner (left) produced a pocket-sized version of the Constitution and the following exchange then occurred:

"I think there are some people who are pretending not to understand it, who think there's leverage for them in threatening a default," Geithner said. "I don't understand it as a negotiating position. I mean really think about it, you're going to say that? Can I read you the 14th amendment?"

"It's paper clipped!" Allen observed.

"'The validity of the public debt of the United States, authorized by law, including debts incurred for the payments of pension and bounties for services in suppressing insurrection or rebellion'—this is the important thing—'shall not be questioned,’" Geithner read.

"So as a negotiating strategy you say: 'If you don't do things my way, I'm going to force the United States to default—not pay the legacy of bills accumulated by my predecessors in Congress.' It's not a credible negotiating strategy, and it's not going to happen," Geithner concluded.

Democrats hope the tactic puts Republicans in the awkward position of arguing against a provision of the Constitution.

This is the backdrop to a National Journal report on Thursday that House Speaker John Boehner, R-Ohio, “informed fellow House Republicans on Thursday that the chances of Congressional leaders and Obama reaching a tentative debt-ceiling deal within 48 hours are ‘maybe 50-50.’”

“That prognosis from Boehner was relayed by several House Republicans as they left a morning briefing with the speaker—and later confirmed by a GOP leadership aide,” according to the Journal.

The news came after House Majority Leader Eric Cantor signaled a compromise late Wednesday on closing tax loopholes on items such as oil and gas.